Myriam Cauvin v Philip Morris Limited (ACN 004 694 428) & Ors [2004] NSWSC 644

Myriam Cauvin v Philip Morris Limited (ACN 004 694 428) & Ors [2004] NSWSC 644

The Court held that it had no power under s 87 of the Trade Practices Act 1974 (Cth) or the equivalent Fair Trading legislation to make compensatory orders for unidentified "other persons" who were not parties and were not represented in properly constituted representative proceedings. The claimed declaration that unidentified "other persons" had suffered or were likely to suffer loss or damage was hypothetical and clearly hopeless. References to "other persons" in the pleaded facts were not material to the plaintiff's own cause of action and were embarrassing. Accordingly, the references to "other persons" and the paragraph claiming compensatory relief for them were struck out, while the...

Jurisdiction
Australia
Judgment Date
24 September 2004
Procedural Posture
Civil Proceedings Alleging Contraventions of the Trade Practices Act 1974 (cth) and Fair Trading Legislation / Interlocutory Motions to Strike Out Parts of the Amended Statement of Claim and Related Abuse of Process Motion
Outcome
Parts of the amended statement of claim referring to "other persons" and paragraph 3.12 were struck out; the plaintiff's motion for leave to deliver a second amended statement of claim was stood over for directions.
Legal Topics
['misleading or Deceptive Conduct' 'representative Proceedings' 'strike Out Application' 'standing' 'compensatory Orders for Non Parties' 'declaratory Relief' 'injunctive Relief' 'federal Jurisdiction']
['consumer Law' 'civil Procedure' 'constitutional Law'] ['misleading or Deceptive Conduct' 'representative Proceedings' 'strike Out Application' 'standing' 'compensatory Orders for Non Parties' 'declaratory Relief' 'injunctive Relief' 'federal Jurisdiction']

Case Brief

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Procedural Posture

Civil Proceedings Alleging Contraventions of the Trade Practices Act 1974 (cth) and Fair Trading Legislation / Interlocutory Motions to Strike Out Parts of the Amended Statement of Claim and Related Abuse of Process Motion

Legal Issues

  1. 1 ['Whether s 87 of the Trade Practices Act 1974 (Cth) and equivalent Fair Trading legislation authorised compensatory orders in favour of unidentified non-parties described as "other persons".' 'Whether the plaintiff could seek declaratory relief that unidentified "other persons" had suffered or were likely to suffer loss or damage by reason of alleged contraventions.' 'Whether references to "other persons" in claims for mandatory injunctive relief under s 80 of the Trade Practices Act 1974 (Cth) and equivalent Fair Trading legislation should be struck out.' 'Whether facts pleaded concerning "other persons" were material to the plaintiff\'s cause of action or embarrassing.']

Ratio Decidendi

The Court held that it had no power under s 87 of the Trade Practices Act 1974 (Cth) or the equivalent Fair Trading legislation to make compensatory orders for unidentified "other persons" who were not parties and were not represented in properly constituted representative proceedings. The claimed declaration that unidentified "other persons" had suffered or were likely to suffer loss or damage was hypothetical and clearly hopeless. References to "other persons" in the pleaded facts were not material to the plaintiff's own cause of action and were embarrassing. Accordingly, the references to "other persons" and the paragraph claiming compensatory relief for them were struck out, while the...

Court Disposition

Parts of the amended statement of claim referring to "other persons" and paragraph 3.12 were struck out; the plaintiff's motion for leave to deliver a second amended statement of claim was stood over for directions.

Orders

  • ['Strike out the references to "other persons" in 2.7(b), 2.8(b), 2.12(a)(ii), 2.13, 2.14, 2.15, 2.16, 2.16(C)(d), 2.16(C)(e), 2.17, 2.19(C)(d), 2.19(C)(e), 2.21, 2.22, 2.23(g), 2.24, 2.24(a) and 2.24(c) in the amended statement of claim.' 'Strike out the claim for relief on behalf of "other persons" in paragraph...